In Scobey v. Nucor Steel-Arkansas, 2009 U.S. App. LEXIS 19094 (8th Cir. Aug. 25, 2009), the United States Court of Appeals for the Eighth Circuit recently affirmed the dismissal on summary judgment of FMLA claims brought by an employee who allegedly notified his employer that he had a drinking problem, but did not initially request a leave of absence for treatment.

The plaintiff worked in the defendant employer's steel mill for seven years. Initially, he requested leave to attend the funeral of his former father-in-law. The next day, he called the employer while intoxicated, and said that he was "done, through" and intended to resign. On the following day, he spoke with his direct supervisor, told him that he had had a nervous breakdown, and hung up the telephone. The supervisor had the impression that the plaintiff was intoxicated. The plaintiff called the shift manager the same day and reported that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while. He missed work the next two days for a total of four days.

The next day, the plaintiff called another supervisor and told him that he could not recall the previous four days and needed help. He subsequently treated with a physician, and notified the employer's HR manager that he had an alcohol problem and was depressed. He received in-patient treatment for alcoholism and depression, and was later discharged to outpatient care. While the employer did not designate the leave time as FMLA leave, it paid the plaintiff for his leave of absence.

Subsequently, the plaintiff was suspended for three days and demoted for having had four consecutive, unexcused absences. He later stopped reporting for work, and sued his employer for FMLA interference and retaliation. The district court granted the employer's motion for summary judgment on the ground that the plaintiff failed to provide notice that his 4-day absence was covered by the FMLA.

In evaluating the plaintiff's claims, the Eighth Circuit noted that, under the regulations in effect at the time of the leave of absence and prior case law, the plaintiff needed to provide notice of the need for FMLA leave. (Employers should note that the current language of 29 C.F.R. Section 825.303(b), which became effective on January 16, 2009, is more restrictive, and requires employees to specifically reference either the qualifying reason for leave or the need for FMLA leave.) Specifically, the plaintiff needed to provide information to his employer to suggest that his health condition could be serious.

The Eighth Circuit held that the plaintiff did not provide notice of the need for FMLA leave with respect to his four -day absence. The court explained that initially the plaintiff requested time off to attend a funeral, which is not protected by the FMLA. Later, he called while intoxicated and said that he wanted to resign, which was not notice that he needed time off from work. Moreover, the court explained that, while absences for treatment for alcoholism are covered by the FMLA, absences caused by the use of alcohol are not. The Eighth Circuit's discussion of the "constructive notice" doctrine is also instructive.

While employers need to be proactive about designating leaves of absence as FMLA-eligible where employees notify them of the need for time off due to a serious health condition, the FMLA does not require them to be mind readers. Prudent employers will document the reasons provided by employees for their absences from work, and offer FMLA leave as soon as it becomes apparent that an employee is eligible for such leave.

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